The Wacky Bat Case

Date: 10/19/11

$850,000 Montana Verdict Upheld for Failure to Warn on a “Non Defective” Bat!
Montana Supreme Court Holds Duty to Warn Beyond a Label on the Product!

They say that hard cases make for bad law. The Brandon Patch case is certainly an example of that. This young man was a pitcher in an American Legion baseball League. A pitch thrown by him was struck by a batter using an H & B non wood bat. A line drive hit Patch in the skull and killed him. Despite finding that the bat was not defective, the jury found that H & B failed to adequately warn the pitcher about the propensity for the bat to hit a ball at slightly higher speeds than a wooden bat, and awarded $850,000.

While the result may not be surprising given jury sympathy, what is amazing is that the Montana Supreme Court upheld that verdict. They went on to add insult to injury by saying that a bat manufacturer owned duties not to just the user of the bat but also to the bystanders and other persons involved in play. The Court concluded by suggesting that more generalized warnings than were on the product could be provided to the public through signs in stores, internet sites, and other activities! At least in Montana, it looks like the duty to warn has been greatly expanded.

The case in question is Debbie Patch vs. Hillerich & Bradsby Co., 257 P. 3d 383 (Mont. 2011). It was decided by the Montana Supreme Court on July 21, 2011.

From the record it is apparent that the trial judge substantially tied the hands of defense counsel in this case. She refused to allow evidence of assumption of the risk, and did not allow the jury to hear about Brandon Patch’s knowledge of the dangers of baseball. She also ruled that standards for liability which normally apply to the users of the product (i.e. the batter) could be applied to the pitcher in this case and to all bystanders. Surprisingly, the Montana Supreme Court agreed with her and upheld the $850,000 verdict.

What is perhaps most striking is what a little “judicial hell hole” Montana really is. In reading through the cases that the Montana Supreme Court cites supporting this odd result, one is struck with how liberal, consumer minded, and impractical the Court’s view of the world is. To allow a trial judge to essentially rewrite the Restatement of Torts, without a thought, is frankly amazing.

The concern that the case creates for all manufacturers is that the Court allowed the jury to expect that a manufacturer would go beyond warnings and instructions on its own product to warn potential users and bystanders of the risk that they might be facing. This is, in fact, new law. This means that not only is there a duty to warn spectators in a sport of the possibility of a fast batted ball hitting them, but even the pitcher and the infielders are somehow to be provided with this warning.

The idea that a warning on a bat could not possibly inform all bystanders and players did not seem to bother the Montana Supreme Court. In fact, it went on to say that the manufacturer could warn more generally via signs in stores, its internet site, and other materials generated for distribution to the public. In essence requiring a manufacturer to warn anyone involved in the sport, even a bystander, of the potential risks involved.

It is against the case law in most states to require a manufacturer to warn of dangers which are open and obvious. What could be more open and obvious than the fact that a baseball batter will hit a ball as hard as he or she can from home plate and that the pitcher’s mound is right in the “line of fire” for such a hit. Many courts would simply rule that there would be no duty to warn against such an open and obvious danger.

Not so in Montana. In addition, it is very rare to see a case require that a warning be extended beyond the actual users of a product. This did not seem to bother the Montana Court and it issued such a ruling. Thus, if there is a risk of injury from being a bystander or being involved in some fashion with the product, it might fall upon a manufacturer to warn bystanders, persons involved in play, and perhaps even the general public through store advertisements, internet and website materials, and perhaps education to leagues and facilities!

It is hard to know whether the Patch case will be seen as a aberration where an unfortunate young man’s life ended and the jury felt sorry for him.

If this is the case, we may not hear much more about it. Unfortunately, there is language in the decision that we could see plaintiff’s attorneys mimicking and quoting as they bring cases against sporting goods manufacturers.

With the idea that forewarned is forearmed, one should be made aware of the Patch case and be watching for developments that arise from it. As of this writing there are not other cases citing it, but it would not be surprising to see this happen in the near future. We will continue to keep you posted from this column.